In Priorities USA v. Nessel, No. 20-1931 (6th Cir. Oct. 21, 2020), a 2-1 panel of the Sixth Circuit holds that the Michigan Legislature had standing to seek an emergency stay of a preliminary injunction of state election law when the state’s attorney general refrained from defending it.
“Three voter-advocacy organizations challenged” a law “mandating that no one ‘hire a motor vehicle or other conveyance or cause the same to be done, for conveying voters, other than voters physically unable to walk, to an election.’ Mich. Comp. Laws (MCL) § 168.931(1)(f)” (termed the “voter-transportation” law). The action was filed against the state attorney general, but among the various intervenors were “both houses of the Michigan Legislature.” After the district court enjoined the law, the attorney general elected not to challenge it, so the legislative intervenors moved for a stay, then took the appeal themselves.
The panel majority holds that the legislative intervenors had standing to appeal the injunction. “Here, the two houses of the Michigan Legislature claim that the legislature, as an institution, is injured by the district court’s suspension of enforcement of the voter-transportation law.” While noting that there is “not a wealth of guiding precedent on the ability of a state legislature to defend a law when no one else will,” the panel majority observes that it may be “especially useful to deal with the instances where a single state executive official (and a single plaintiff and a single trial judge) could nullify the people’s will.”
“Here, … the State of Michigan is injured in its sovereign capacity by its inability to enforce its duly enacted statute. The state executive has acceded to the district court’s injunction of the voter-transportation law and declined to appeal. And [here], … both houses of the Michigan Legislature now act in concert to defend the voter-transportation law. Denying the legislature standing to defend its own law would allow the state executive to nullify a state statute without any ultimate judicial determination.” The panel majority relies on United States v. Windsor, 570 U.S. 744 (2013), which allowed legislative intervenors to defend the Defense Against Marriage Act when the U.S. Justice Department declined to do so.
While observing that Michigan law does not clearly speak to what happens when the state’s highest law enforcement office declines to defend a law in court, the panel majority finds that state decisional law recognizes the authority of the legislature to defend election laws when “the Executive Branch abdicate[s] its role …. [Thus,] Michigan law authorizes its legislature, both houses acting in concert, to defend a state election law in court when the attorney general will not.”
Additionally, “a legislature body suffers an injury sufficient to confer standing if that body’s specific powers are disrupted. … While the injunction is in effect, Michigan’s legislature cannot enact any enforceable laws that even regulate hired voter transportation for federal elections. And even if the injunction lasts only a relatively brief time, the injury would be no less severe. Laws governing conduct related to polling places are effective only while polls are open—election days—and what promises to be a significant election day draws near. The legislature has lost the ability to regulate that election in a particular way. Because its powers to regulate elections have been disrupted, the Michigan Legislature has suffered a sufficient injury for standing.”
Upon review, the panel majority granted the stay.
Dissenting, Judge Clay would hold that legislative standing must be limited to cases where “the challenged law interferes with their constitutionally vested powers,” not simply an “abstract dilution of legislative power.” In the case of the voter-transportation law, “the Legislature has no cognizable interest in the law’s enforcement. That interest belongs to the Attorney General, whom the State of Michigan tasks with enforcing the law …. The preliminary injunction only pauses the law’s enforcement. To say that a brief pause in enforcement strikes at the core of the Legislature’s constitutionally vested power strains credulity.”